Scottish Court of Session Decisions

John Wilson, feuar in Killearn, was appointed, in 1832, factor loco tutoris to Joan Jane M'Ewen, a posthumous child of the late John M'Ewen, who died in December, 1831. In 1833, Wilson presented a petition, stating, that M'Ewen had left no heritage, except the lands of Spittal Ballat, which he had bought, shortly before his death, at a price of £1360, from Mr Campbell of Bedlay, but to which he had completed no title; that Mr Campbell had subsequently recovered decree for the price, and for implement of the contract, against the petitioner and the pupil; that the personal estate of the deceased was about £700 less than enough to pay the price, and, as the money could only be raised by borrowing, the expense would be very injurious, and the interest would absorb the whole, or the chief part, of the rent of the land; that, besides this, the lands, if retained, would require some outlay, for turning them to account, and the pupil had no means of making this; that Mr Buchanan, a neighbouring proprietor, had offered to take the lands off the pupil's hands, by paying the price, and implementing all the conditions incumbent on the pupil, and also to pay the expense of this application, not exceeding £20, provided the authority of the Court was obtained in favour of a sale by the pupil to him, on these terms. Wilson, therefore, prayed the Court to authorize him to make over the lands of Spittal Ballat to Buchanan, or, failing this, to borrow the requisite sum on the security of the lands.

A report and valuation of the lands was ordered, and an estimate was returned, exceeding the price offered by Buchanan. The lands were, therefore, offered for sale, after due advertisement, at the price offered by Buchanan, and as no bidder appeared, a minute was lodged for the petitioner, stating, that this was a sufficient test that Buchanan had offered the full value; that, if payment was farther delayed, the seller was about to proceed with an adjudication, the expense of which would be highly injurious; and that the only method of saving even a small sum out of the estate of the deceased, for behoof of the pupil, was by authorizing the sale to Buchanan.